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State delays release of FOIL’d nursing home data again, as pressure grows for answers

The Cuomo administration is refusing to release a full count of coronavirus deaths in New York nursing homes for another two months, until March 22nd.

In a letter to the Empire Center on Wednesday, the Health Department claimed that it needs a further nine weeks and five days “because the records potentially responsive to your request are currently being reviewed for applicable exemptions, legal privileges and responsiveness.”

This is the third time the department has postponed responding to a Freedom of Information Law request filed by the Empire Center on August 3rd.

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On Aug. 31, the department said it could not immediately turn over the records because “a diligent search for responsive documents is still being conducted.” On Nov. 5, it said the records were being reviewed, using the exact same wording as in today’s letter.

In a lawsuit filed after the August 31st delay, the Empire Center argued that the department has no valid reason for withholding the requested data. That case has been ready for a ruling from Judge Kimberly O’Connor of state Supreme Court in Albany County since October 30th.

Throughout the pandemic, the department has required nursing homes to make daily reports about coronavirus deaths among residents through its Health Emergency Response Data System, or HERDS. The HERDS questionnaire asks for a separate count of residents who die physically within the facilities, as well as deaths that occur after residents are transferred to hospitals.

The department routinely uses the HERDS data to post tallies of in-facility deaths – which stood at 8,201 on January 11th – but it has consistently omitted deaths that occurred elsewhere, which are likely to number thousands more.

In testimony before the Legislature, Health Commissioner Howard Zucker has acknowledged having a count of nursing home residents who died in hospitals, but he has repeatedly declined to provide that information to lawmakers, the media or the general public.

“It could not be more clear that the state is illegally hiding basic information about a public health crisis,” said Bill Hammond, senior fellow for health policy at the Empire Center. “The department’s excuses are an insult to the intelligence of every New Yorker, and the Cuomo administration’s stonewalling makes a mockery of the public’s right to know.”

“It’s increasingly evident that the state will not release these records until compelled to do so by the courts,” Hammond said. “We eagerly await a ruling from Judge O’Connor.”